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high court rules botswana

Botswana's High Court has overturned a colonial-era law criminalizing consensual same-sex relations in a landmark victory for Africa's LGBTQ movements. 79, 1975,S.I. Rules of the High Court (1) Subject to subrule (2) and to Order 7, a defendant to an action begun by writ of summons (whether or not he is sued as a trustee or personal representative or in any other representative capacity) may enter an appearance in the action and defend it by an attorney or in person. To print the whole chapter in HTML, please click at the bottom of the TOC panel and then click .Please set the page orientation to “Landscape” for printing of bilingual texts on a single page. Giving out its analysis of the Delhi High Court's December 21 judgment, Future Retail Ltd (FRL) in a filing to … 1. 04:02 Sub. The Registrar shall publish the dates of each judge's motion days at least three weeks in advance of the earliest such date. If the defendant on the return day or on the day of the anticipation of the same as aforesaid admits the claim contained in the process, final judgment shall be given against him and he shall be discharged from such arrest. 9. Advocates and Attorneys: warrants to sue and defend, 8. 3. (1) Where before proceedings in which a claim for money is made by or on behalf of a person under disability (whether alone or in conjunction with any other person) are begun, an agreement is reached for the settlement of the claim, and it is desired to obtain the judge's approval to the settlement, an application to the judge may be made for-, (a)   the approval of the judge to the settlement and such orders or directions as may be necessary to give effect to it; or. (2) The bond or obligation to be given to the Sheriff or his deputy under subrule (1) shall be as near as may be in Form 8 in Schedule 1. (aa)   his residence or place of business, and, where known, his occupation, and, if he is sued in a representative capacity, the capacity in which he is so sued. 16. Application of other rules. 4. (2) On hearing such an application, the judge may-, (b)   extend the period for filing the declaration; or. Insufficiency of sureties 116 . Such summons shall be issued by the Registrar and the provisions of rules 4 and 10 of Order 6 shall mutatis mutandis apply. (1) Where the application to the judge is for an order affecting the liberty or status of the respondent, the application, petition, summons or writ shall be served by delivery of a copy thereof to the respondent personally, unless the judge for good cause shown gives leave for such application, petition, summons or writ to be served in some other specified manner. (ii)   copies of the documentary exhibits to be relied upon or, in the case of a running account, a statement of account from inception stating with descriptions thereof all debits and credits and the outstanding balance. 14. 10. (3) The originating process shall in such case be renewed by being marked with the stamp of the court and shall bear the date of such renewal; such stamp to be impressed upon the originating process by the proper officer, upon delivery to him by the plaintiff or his attorney of a memorandum in Form 28 in Schedule 1 with such variations as circumstances may require. To print the whole chapter in HTML, please click at the bottom of the TOC panel and then click .Please set the page orientation to “Landscape” for printing of bilingual texts on a single page. 5. 8. 3. 4. If the Sheriff or his deputy takes from the party arrested any money or thing for the plaintiff or any bond or obligation by virtue of any writ of attachment, then the Sheriff or his deputy shall, as soon as practicable, and being thereunto required by the plaintiff or his attorney, deliver over to the plaintiff or his attorney any such money or thing or assign to the plaintiff such bond or obligation by an endorsement thereon to be made by the Sheriff or his deputy under his hand, which endorsement shall be as near as may be in Form 9 in Schedule 1. Laws that penalize same-sex intercourse contribute to a cycle of stigma, homonegativity and discrimination. The publishers do not accept any liability whatsoever arising from any errors or omissions to any person acting or refraining from acting as a result of the information contained in this publication. 1. 8. In 2017, in two separate cases, one for a trans man and another for a transwoman, ruling that the refusal of the National Registration violated their rights to dignity privacy, freedom of expression, equal protection under the law for the refusal to allow changing their gender marker. 2. Notwithstanding the foregoing rules, interlocutory and other applications incidental to pending proceedings may be brought on notice using Form 5 in Schedule 1 supported by such affidavits as the case may require and set down on a motion day or as directed by a judge. General forms of process, fees, etc. 4. (2) Where the Registrar is satisfied that reasonable efforts have been made to serve such defendant, or for other good reasons, he may renew the original or concurrent originating process for three months from the date of such renewal inclusive, and so from time to time during the currency of the renewed originating process. (3) On hearing the application to deliver the better statement or particulars, the judge may-. (5) Any person served with a notice in terms of subrule (3) or (4) shall be deemed to be a party to the proceedings with the rights and duties of a defendant. June 11, 2019 Florida News 0 . When a contract, promise or agreement is alleged in any pleading, a bare denial of the same by the opposite party shall be construed only as a denial of fact of the express contract, promise or agreement alleged, or of the matters of fact from which the same may be implied by law, and not as a denial of the legality or sufficiency in law of such contract, promise or agreement. 9. (a)   within the time stated in the said notice, give the applicant notice in writing that he intends to oppose the application and in such notice appoint a physical and postal address within Botswana at which he will accept notice and service of all documents; (b)   within 14 court days of the service on him of the notice of motion, deliver his answering affidavit, if any, together with any relevant documents; or. (1) Every pleading shall be legibly written or typed on A4 paper, and shall, when necessary, be divided into paragraphs numbered consecutively, each paragraph containing as nearly as may be a separate allegation. 29 September 2017, Gaborone, Botswana. 6. 3. (3) Upon such application the judge may make such order as to the manner of service as to him seems meet and shall further order the time within which notice of intention to defend is to be given or any other steps to be taken by the person to be served. Today that number has decreased by one. 7. 13. These rules are administered by the Ministry of Justice. The main sources where civil procedures can be found in Botswana are the rules and statutes of the courts/bodies that hear the matter. In every action the writ shall be endorsed with the particulars of the claim, signed by the plaintiff or his attorney which particulars shall state truly and concisely the nature, and the grounds of the cause of action and the relief sought. A declaration shall be filed within 14 court days of entry of appearance, and may be accompanied by an application for summary judgment. 3. Notwithstanding rule 9, once a cause is set down for hearing, no attorney shall be permitted to renounce his agency during the 10 court days immediately preceding the trial date except with the leave of the judge upon good cause shown, which shall not include only the failure of a client to pay fees. Orders 28 and 39 shall apply to a person under disability and to his guardian or guardian ad litem. Facts and allegations already set forth in the plea or in the declaration and admitted in the plea may be incorporated in the claim in reconvention by reference to the relevant paragraphs of the plea or declaration, as the case may be. 1. (2) A judge may, on account of the poverty of any party, although such party may not have been formally admitted to sue or defend as a pauper, or for other sufficient reasons, dispense, if he sees fit, with the payment of any fees. f4bwa_2007_dec_a. (1) A defendant may not enter an appearance to an action after judgment has been entered therein except with the leave of the judge and after such judgment has been set aside. Botswana High Court rules ban on sexual relationships between same sex persons is unconstitutional. 9. (4) If the plaintiff (or defendant in the case of proceedings involving a third party) experiences difficulty in effecting service on a corporation or company under rule 2(2)(f), he may apply under subrule (3) for leave to effect substituted service. Botswana High Court judges stated that “a democratic society is one that embraces tolerance, diversity and open-mindedness” as well as highlighting that discrimination serves to hold back not only LGBTIQ people, but society as a whole by stating that “societal inclusion is central to ending poverty and fostering shared prosperity,”, on 11 June 2019. Where any action has been commenced in the name of the wrong person as plaintiff, or where it is doubtful if it has been commenced in the name of the right plaintiff, the judge may, if satisfied that it has been so commenced through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute to do so, order any other person to be substituted or added as plaintiff subject to his consent in writing and upon such terms as may be just. 5. (2) Such pleadings shall be termed rejoinder, surrejoinder, rebutter and surrebutter, as the case may be. The high court in Gaborone, Botswana, threw out the country's longstanding ban on same-sex relations Tuesday, setting off celebrations inside the … 15. High Court in Botswana rules to decriminalize same-sex relations. 113 . 4. (c)   if he intends to raise a question of law only, deliver notice of his intention to do so within the time stated in the preceding paragraph, setting forth such question: (4A) The provisions of subrule (4) shall apply notwithstanding the provisions of rule 2(2) of Order 42 unless the judge otherwise directs. (2) Any alteration or amendment of an originating process, whether before or after issue, shall, before service thereof, be initialed by the Registrar, and until so initialed such alterations and amendments shall have no effect. The forms in Schedule 1, or forms as near as shall be, may be used in all matters, causes and proceedings to which they are applicable, with such variations as circumstances may require. In such event, the plaintiff shall be afforded a reasonable opportunity of replying thereto. (iii)   that the person so named has no interest in the cause in question adverse to that of the person under disability. (2) Before enrolling or applying at any case management conference for the hearing of an exception, the excipient shall, by his notice of exception, accord to his opponent the opportunity of removing his cause of complaint within 10 court days, failing which removal the application may be made. These Orders and Rules may be cited as the Rules of the High Court. The judge may order to be struck out from any affidavit any matter which is scandalous, vexatious or irrelevant. (c)   make such other order as he deems just so as to ensure the expeditious disposal of the case. A joinder of issue shall operate as a denial of every material allegation of fact in the pleading upon which issue is joined, but it shall except any facts which the party may be willing to admit and shall then operate as a denial of the facts not so admitted. 10. High court of Botswana Private Bag F13 Francistown Tel: (+267) 2412125 / (+267) 2416378 Fax. Botswana ruled to decriminalize homosexuality, by ruling to remove remaining relics of its colonial past and to strike down section 164(a) and (c), and section 167 of the penal code which criminalize same-sex relations, or “carnal knowledge against the order of nature”, and prescribe a prison sentence of up to 7 years for those found guilty. "guardian" shall include guardian ad litem, curator and tutor, as the context requires. (3) An appearance is entered by properly completing and delivering a memorandum of appearance. (2) Where a writ of summons or other originating process is issued out of the High Court Registry at Francistown, the appropriate office for entering an appearance shall in all cases be the High Court Registry at Francistown. 2. The Registrar or other officer empowered to do so shall sign and date- stamp every writ or other process. (3) Such leave shall only be given on good and sufficient cause and upon such terms as the judge deems just. 6. 40, 2008,S.I. (2) A conditional appearance, except by a person sued as a partner of a firm in the name of that firm and served as a partner, is to be treated for all purposes as an unconditional appearance unless the judge otherwise orders or the defendant applies to the judge within the time limited for the purpose for an order under rule 5 and the judge makes an order there under. Fortunately, rd for … These Rules may be tiled as the Rules of the High Court (Amendment) Rules, 1989, and shall tome into operation on 1st July, 1989. 2. 11. People who broke the law had faced the threat of a seven-year prison sentence. Home | Terms & Conditions | Privacy Statement | Publishing Services | Blackhall Publishing | Contact Us | Sitemap. Subject to the provisions of these Rules and of any enactment, the Rules of the High Court shall apply with the necessary modifications to the practice and procedure in matrimonial proceedings in the High Court. At the centre of the court case is a Toyota Land Cruiser costing almost half a million … The casual manner in which she treated this matter and her open contempt of the processes of this court were intolerable. (2) A natural person may appear to prosecute or defend a cause in person, while a private company, partnership or association may appear by a director, partner, or other officer being duly authorised by resolution and power of attorney to do so. Such notice shall state the nature and grounds of the claim of the party issuing the same, the question or issue to be determined, and any relief or remedy claimed; and in so far as the statement of the claim and the question or issue are concerned, the rules with regard to pleadings and to summonses shall mutatis mutandis apply. “Punishing people based on their sexual orientation has a deeply negative impact that goes far beyond the risk of arrest and imprisonment. (2) An application for an order under this rule must be supported by sufficient evidence that the statements of fact made in the special case, so far as they affect the interest of the person under disability, are true. Every affidavit shall state the description, the place of abode, and the occupation of the deponent. (d)   subject to subrule (5), that notice of the application was, after the expiration of the time limited for appearing, and at least seven court days before the day named in the notice for hearing of the application, so served on him. PART III-OFFICERS OF THE COURT. Commencement of Proceedings . (2) Such notice shall be complied with within seven court days. 3. Where a replication or subsequent pleading is necessary, a party may therein join issue on the allegations in the previous pleading; to such extent as he has not dealt specifically with the allegations in the plea or such other pleading, such joinder of issue shall operate as a denial of every material allegation of fact in the pleading upon which issue is joined. 5. 9. 6. The time within which a defendant shall be required to enter appearance to defend shall be reckoned as follows-. Botswana's high court struck down laws banning gay sex on Tuesday African … (2) In every affidavit filed in support of any application under subrule (1), the applicant shall set forth explicitly the circumstances which he avers render the matter urgent and the reasons why he claims that he could not be afforded substantial redress at a hearing in due course. 3. 61:01); "cause" includes any action, suit or other original proceeding and any criminal proceeding; "counsel" means an advocate or an attorney; "court" means a judge sitting in open court; "court day" means any day other than a Saturday, Sunday or any day which is a public holiday under the Public Holidays Act (Cap. Botswana’s High Court Rules Homosexuality Is Not A Crime. 2. A writ of summons shall be prepared by the plaintiff or an attorney and shall be written or printed or partly written or partly printed on A4 paper of good quality. The applicant sought rescission of the judgment in terms of Order E 48 rule 1(a) of the Rules of the High Court (Cap 04:02) (Sub Leg), alternatively, Order 30 rule 11 of the Rules of the High Court. Lekgowe (with him Ms. P. Ramaja & Mr. T.K. Application of these Rules shall be directed towards the achievement of a just, efficient and speedy dispensation of justice. Service shall be proved in one of the following manners-. (4) A judgment or order requiring a person to do, or refrain from doing, any act, or a notice of motion or writ of summons for the attachment or committal of any person must, if that person is a person under disability, be served personally on him unless the judge otherwise orders. (5) If two or more defendants to an action enter an appearance by the same attorney and at the same time, only one memorandum need be completed and delivered for those defendants. 1. Botswana’s high court has thrown out a colonial-era law that criminalized same-sex relations in a landmark ruling lauded by activists. (3) It shall be the duty of the Sheriff or the person serving a process or document to explain the nature and contents thereof to the person upon whom service is being effected, and to state in his return that he has done so. 1. A defendant entitled and wishing to enter into the principal case shall, within one month of the grant of provisional sentence, deliver notice of his intention to do so, in which event the summons shall be deemed to be a summons with declaration annexed thereto and he shall deliver a plea simultaneously; failing such notice and plea, the provisional sentence shall ipso facto become a final judgment and the security given by the plaintiff shall lapse. We must do better for our community, and we must actively work to remove all laws that criminalize LGBT people. 10. (1) Any party to any application proceedings may bring a counter application, or may join any party to the same extent as would be competent if the party wishing to bring such counter application or join such party were a defendant in an action and the other parties to the application were parties to such action; in the latter event, Order 16 shall apply mutatis mutandis. Whenever a party to any proceedings dies or ceases to be capable of acting as such, his executor, curator, trustee or similar representative may by notice to all other parties, and to the Registrar, intimate that he desires in his capacity as such thereby to be substituted for such party, and, unless the judge otherwise orders, he shall thereafter for all purposes be deemed to have been so substituted. 20. Botswana's High Court has thrown out a colonial-era law that criminalized same-sex relations in a landmark ruling lauded by activists. Subject to rule 2, non-compliance with any of these Rules, or with any rule of practice for the time being in force, shall not render any proceedings void unless the judge so directs, but the proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with, in such manner and on such terms as the judge may think fit. Where in these Rules a copy of any pleading is ordered to be delivered by a party to another party, and one or other of the parties, or any of them, are represented by attorneys, it shall be delivery by or to the attorney of the party at the address for service. In September 2017, the Botswana High Court ruled that the refusal of the Registrar of National Registration to change a transgender man's gender marker was "unreasonable and violated his constitutional rights to dignity, privacy, freedom of expression, equal protection of the law, freedom from discrimination and freedom from inhumane and degrading treatment". 4. 29, 2016) In a unanimous decision on March 16, 2016, the Botswana Court of Appeal, the highest court in the country, upheld a 2014 High Court ruling that found unconstitutional a decision of the Minister of Labour and Home Affairs refusing to register the Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) as a … 6. 6. (a)   by delivering a copy thereof to the said person personally: (i)   where such person is a minor or a person under legal disability service shall be effected upon the guardian, tutor, curator, or the like of such minor or person under disability; and. (a)   a physical and postal address within the jurisdiction; (b)   in the case of a defendant appearing by an attorney, a business address of the attorney within the jurisdiction, and where the defendant enters an appearance in person, the address specified under paragraph (a) shall be his address for service, but otherwise his attorney's address shall be his address for service; (c)   concisely the nature and the grounds of the defence and the relief or remedy required. The judge may upon notice of application delivered by any party within 21 court days of service of notice in terms of rule 2 or 3 set aside or vary any addition or substitution of a party thus effected, or may dismiss such application or confirm such addition or substitution on such terms, if any, as to the delivery of any affidavits or pleadings, or as to postponement or adjournment, or as to costs or otherwise, as to him may seem meet. (a)   the said actions shall proceed as one action; (b)   the provisions of this Order shall mutatis mutandis apply with regard to the action so consolidated; and. Where the judge is of opinion that any allegation of fact denied or not admitted by the defendant ought to have been admitted, the judge may make such order as shall be just with respect to any extra costs occasioned by it having been denied or not admitted. 3. (2) There shall be endorsed on every affidavit a note showing on whose behalf it is filed, and no affidavit shall be used without such note, unless the judge otherwise directs. ORDER 8SERVICE OF SUMMONS, WRITS, NOTICES AND OTHER DOCUMENTS. A claim in reconvention shall be filed with the defendant's plea, and a copy thereof delivered to the plaintiff. (6) The officer in the Registry to whom pleadings, petitions, applications, affidavits and all other process, proceedings or other document relevant to the case are presented for filing shall impress the date stamp provided for that purpose on each original document and every copy presented, and shall also append his signature below the date and time impressed by the date stamp. 15. (b)   order the delivery of the better statement or further particulars within a stated period. 116, 2004,S.I. 3. 10. 58, 1989,S.I. 9. 79, 2015. (a)   an affidavit or affidavits by persons having direct knowledge thereof setting out the facts relied upon, and where summary judgment is sought, the averments required by rule 3(b) of Order 34; and. Leg.) All persons may be joined as defendants against whom the right to relief is alleged to exist, whether jointly, severally or in the alternative, and judgment may be given against such one or more of the defendants as may be found to be liable, according to their respective liabilities, without any amendment. (3) At the hearing the judge may grant or dismiss the application, or grant interim relief, or may adjourn the application upon such terms as to service upon interested parties, the filing of further affidavits, or otherwise, as to him seem meet. (1) Where any pleading contains averments which are scandalous, vexatious or irrelevant, the opposing party may, within the period allowed for filing any subsequent pleading, and before filing any further pleading, file and deliver a notice of application to strike out such averments, and by such notice shall accord his opponent an opportunity of removing the cause of complaint within 10 court days, failing which removal the party delivering the application may enroll it for hearing on a motion day, or may make application for directions under Order 28. Any condition precedent, the performance or occurrence of which is intended to be contested, shall be distinctly specified in his pleading by the plaintiff or defendant, as the case may be, with a specific averment as to whether or not is was fulfilled. (2) Subject to the provisions of these Rules, anything which in the ordinary conduct of any proceedings is required or authorised by a provision of these Rules to be done by a party to the proceedings shall or may, as the case may be, if the party is a person under disability, be done by his guardian or guardian ad litem. High Court - Francistown Private Bag F13 Francistown Tel: (+267) 2412125 / (+267) 2416378 Fax: (+267) 2416378. 1. (1) No public company or parastatal may institute, defend or oppose any cause or appear before the court otherwise than by counsel. ORDER 23DISMISSAL FOR WANT OF PROSECUTION. Any person against whom an interim order is granted ex parte may anticipate the return day upon delivery of not less than 24 hours' notice. (1) Every affidavit to be used in any cause in the Principal Registry or in a Registry shall be filed in the Principal Registry or in the Registry, as the case may be. 6. (+267) 2416378. (1) Every petition shall conclude with the form or order prayed and be verified upon oath by or on behalf of the petitioner. The   defendant or plaintiff, as the case may be, must raise by his pleading all matters which show the action or claim in reconvention not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence or reply (as the case may be) as if not raised would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the preceding pleadings, as, for instance, res adjudicata, lis pendens, fraud, prescription, release, payment, performance or acts showing illegality either by statute or common law. 4. If any action taken under rules 2 and 3 is repudiated by the alleged principal and is found by the judge to have been unjustified, the judge may order the attorney personally to pay the costs thereby occasioned. Who is eligible? Siblings, parents and children of the deceased. “Botswana has done it, yes the good work starts here and now,” said Una Ngwenya, Executive Director … (3) Notwithstanding anything in subrule (2), the judge may order that a document which has been, or is to be, served on the person under disability, or on a person other than a person mentioned in that subrule, shall be deemed to be duly served on the person under disability. (10) Where an application cannot properly be decided upon affidavit, the judge may dismiss the application or the judge at the pre-trial conference may make such order as to him seems meet with a view to ensuring a just and expeditious decision; and in particular, but without affecting the generality of the foregoing, he may direct that oral evidence be heard on specified issues with a view to resolving any dispute of fact and to that end may order any deponent to appear personally or grant leave for him or any other person to be subpoenaed to appear and be examined and cross-examined as a witness, or he may refer the matter to trial with appropriate directions as to pleadings or definition of issues or otherwise. (a)   insofar as the third party's plea relates to the claim of the party issuing the notice, the said party shall be regarded as the plaintiff and the third party as the defendant; (b)   insofar as the third party's plea relates to the plaintiff's claim, the third party shall be regarded as a defendant, and the plaintiff shall file pleadings as provided by the said rules. 4. 23. 7. The court ruled the law used to criminalise same sex relationships unconstitutional. Administration of estates of incapacitated persons FORMS of process, fees, etc sue and defend mutatis mutandis.. Or for discovery or inspection of documents, 41 Inquirendo, appointment of curators by... Actions, 18 medical Services without stigma on entry of appearance is high court rules botswana draft 1. Judge shall determine the date of hearing at the end of this reprint provides a list of High! 29:03 ), a married person can sue or be sued in its name and date- stamp writ. 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